Digging Deeper into Development & Exclusion: Freedom and the Common Good in Property Rights

Professor Eric Freyfogle, of the University of Illinois College of Law, is a prolific and thoughtful writer on the legal, socio-cultural, ethical, and ecological dimensions of private property.How we define rights or freedoms to develop and exclude shapes our land use and environmental practices.As Professor Freyfogle’s recent work demonstrates, we often misunderstand the nature of private ownership of land and therefore need to dig deeper to the foundations of property as a social institution.

Below are abstracts of and links to three articles by Professor Freyfogle that question assumptions about the right to develop and exclude.

At stake in most contemporary land-use disputes, particularly those involving regulatory takings, is the legal right of land owners to develop or otherwise alter their lands in significant ways. Landowners claim that they possess or should possess this power, while lawmakers conclude that a curtailment of rights would serve the public interest. For various reasons we've had troubles seeing this conflict clearly. What development rights should landowners possess, and what powers should government have to curtail or redefine them? To address these questions we need to see that private property is basically a tool that society uses to promote the common welfare; it is a social institution in which private owners call upon government (including police, courts, and even prisons) to curtail the activities of nonowners. To decide what development options owners ought to possess, given this moral complexity, we need to consider how a sound system of private property can in practice promote the common good.This essay, drawn from a new book on private property, probes the three basic functions of private land ownership with particular regard for development rights. It also probes how increases in the development value of land are due not to labor expended by owners but to the activities of surrounding landowners as a community. This background sets the stage for answering the central question of development rights. A key conclusion is that, while landowners need and deserve substantial protection from interference with on-going activities, there is much less need to protect their hopes of initiating new land uses in the future. What landowners need most is not some protection against future laws limiting development but instead an assurance that such laws will apply widely to all similarly situated landowners.

Today's discussions about private land ownership and regulatory takings build upon a number of critical assumptions about how private property arises, how it relates to liberty, in what sense it is an individual right, what full ownership entails, and how property rights might legitimately change over time. This essay-excerpted from chapter 1 of a new book, On Private Property: Finding Common Ground on the Ownership of Land-steps back from contemporary debates to probe these fundamental assumptions. The assumptions, it claims, tend to be seriously flawed; they are no more than half-right, and need important revision to provide a solid foundation for evaluating where we stand and charting a course ahead. At root, private property is a social institution, created by law and lawmakers and appropriately revised, generation by generation. Private property does not exist primarily to protect individual liberty; indeed, it curtails liberty as much as it protects it. It makes little sense, also, to claim: that property begins when a person takes first possession of a thing; that private property can somehow be crafted as absolute; and that ownership necessarily entails expansive rights to develop. The situation is more complex, and property rights more pliable, tentative, and morally complex. Scholarly writing on private property would likely improve if commentators turned away from Supreme Court rulings on takings and focused instead on the fundamental elements of private property as an essential tool that society uses and continually reshapes to foster shared goals.

Legal memory in the United States has largely forgotten that most of America's landscape was open to public use well into the nineteenth century. Up until the Civil War and even after, landowners in many regions could exclude the public only from lands that they took the time and expense either to fence or cultivate. In the eyes of many, the public held affirmative use rights in these open lands; the landowner's desire to exclude was irrelevant. This paper explores the range of public uses of lands in early America. It considers how and why enclosure occurred and why historians and legal scholars have largely overlooked this chapter in American history. The answers have to do with shifting ideas about the “right to property,” with the diminishing force of natural law, with narrowing ideas of liberty, and with ongoing economic and social change, particularly the coming of industrialization and its growing demand for wage labor. On top of these explanations was a general failure of defenders of the open countryside to find legal ways to talk about and structure the public's use rights. Many states were willing to set aside the common law of trespass, and did so for generations. Yet, defenders of the open countryside never produced an alternative legal vocabulary to protect these public use rights, except in specific, narrow circumstances; they never found a way to incorporate these public use rights into enduring law. Influential judges and treatise writers, largely urban and Eastern, viewed public rural-land rights with contempt. Their interpretation of the situation gained ascendancy by the late nineteenth century, and it has prevailed ever since.